Submitted on Briefs: January 9, 2019
FROM District Court of the First Judicial District, In and
For the County of Lewis and Clark, Cause No. CDV-2017-655
Honorable Kathy Seeley, Presiding Judge
Appellant Franco Leo Torres, Self-Represented, Helena,
Appellee Timothy C. Fox, Montana Attorney General, Madison L.
Mattioli, Assistant Attorney General, Helena, Montana, Leo J.
Gallagher, Lewis and Clark County Attorney, Helena, Montana
McGrath Chief Justice
Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
Internal Operating Rules, this case is decided by memorandum
opinion and shall not be cited and does not serve as
precedent. Its case title, cause number, and disposition
shall be included in this Court's quarterly list of
noncitable cases published in the Pacific Reporter and
Franco Leo Torres (Torres) appeals from a March 29, 2018
First Judicial District Court order denying his petition for
post-conviction relief. We affirm.
In May 2008, Torres was charged with Partner or Family Member
Assault (PFMA) for purposely or knowingly causing bodily
injury to his partner, M.R. On May 29, 2008, Torres pleaded
guilty pursuant to a plea agreement and received a deferred
sentence. Torres did not appeal the judgment.
In 2009, Torres' deferred sentence was revoked and he was
sentenced to the Department of Corrections (DOC) for five
years, with two years suspended. After serving three years,
Torres was released in 2012 to serve the suspended portion of
his sentence. In August 2013, Torres was arrested for felony
PFMA in Yellowstone County. Torres denied the allegations in
the petition and filed a motion to set aside his 2008 PFMA
conviction, arguing the pre-2013 PFMA statute was
unconstitutional. The District Court denied his motion.
Torres' suspended sentence was subsequently revoked and
he received a two-year sentence to the DOC, to run
concurrently with the sentence imposed by the Yellowstone
County District Court for Torres' 2013 PFMA conviction.
In 2017, Torres appealed the denial of his motion to set
aside the prior conviction and revocation of his suspended
sentence. This Court affirmed the District Court's
decision. State v. Torres, 2017 MT 177, 388 Mont.
161, 398 P.3d 279. In August 2017, Torres filed a petition
for postconviction relief related to the 2008 conviction. The
District Court denied Torres' petition, holding that his
claims were time-barred and he waived his right to challenge
the PFMA statute when he pleaded guilty in 2008. Torres
We review a district court's denial of a petition for
postconviction relief to determine whether that court's
findings are clearly erroneous and whether its conclusions of
law are correct. Walker v. State, 2003 MT 134,
¶ 36, 316 Mont. 103, 68 P.3d 872.
A petition for postconviction relief must be filed within one
year of the date the conviction becomes final. Section
46-21-102(1), MCA. A conviction becomes final when the time
for appeal to this Court expires, which, in this case, was
sixty days after the entry of judgment. Section
46-21-102(1)(a), MCA; M. R. App. P. 4(5)(b). Because Torres
did not file a direct appeal from the June 10, 2008 judgment,
his conviction became final for purposes of §
46-21-102(1)(b), MCA, on August 10, 2008. Accordingly, Torres
had one year, until August 10, 2009, to file a petition for
postconviction relief. Davis v. State, 2004 MT 112,
¶ 14, 321 Mont. 118, 88 P.3d 1285. Torres did not file
his petition for postconviction relief until August 14,
2017-eight years after the expiration of the one-year
Torres acknowledges that his claims are time-barred but
nonetheless argues that his petition for postconviction
relief should be decided on the merits because the District
Court "abridged his due process rights" when it
used his prior domestic violence convictions in Nevada for
stacking purposes to raise his 2008 PFMA conviction to a
felony. In an attempt to circumvent the one-year
limitations period, Torres argues that newly-discovered
evidence establishing his innocence of ...